When the matter was last before this Court, we vacated the trial court's finding, after separate trials, that the 2001 Amendments were constitutional on the ground that the court “did not elaborate on the criteria [underlying its determination]” and “failed to state the particular facts on which it based its judgment” (84 AD3d 48, 59 [1st Dept 2011], revg 27 Misc 3d 1079 [Sup Ct, NY County 2010]). Accordingly, we remitted the matter to the court for a decision setting forth its findings as to plaintiffs' facial and “as applied” constitutional challenges, directing the court to reassess the evidence under the “somewhat heightened” standard of review of “intermediate scrutiny” (id. at 63).

Simply put, we framed the issue as whether the “self-identified 60/40 businesses” under review displayed a predominant, ongoing focus on sexually explicit materials or activities (id. at 60 [internal quotation marks omitted]), or whether there had been a significant change in their character that distinguished them from their pre-1995 forbears (id. at 63). We also instructed the trial court not to consider evidence that was irrelevant to this issue (id.).

On remand, the trial court found that “[g]iven their current arrangements and secondary characteristics, [the adult establishments] no longer operate in an atmosphere placing more dominance of sexual matters over nonsexual ones” (38 Misc 3d 663, 675 [Sup Ct, NY County 2012]). Consequently, the court declared the 2001 Amendments unconstitutional as violative of the free speech provisions of the U.S. and New York State Constitutions and found it unnecessary to reach the “as applied” challenges (id.). Giving “due deference” to the findings of the trial court, the majority affirms, holding that the City did not meet its burden of showing that the 60/40 adult establishments under consideration retain a predominant, ongoing focus on sexually explicit activities, thereby resembling their 100% adult predecessors. I disagree.

*295 “The scope of our review of a nonjury trial is as broad as that of the trial judge, and permits us to substitute our own judgment where the evidence fails to support an important element of the trial court's findings” (Palmer v WSC Riverside Dr., LLC, 61 AD3d 589, 589 [1st Dept 2009] [citations omitted]). Although all litigation must come to an end at some point, it is essential that we carefully balance the City's right to exercise its police power in the public interest against the 2001 Amendments' potential infringement on protected speech. Accordingly, because I believe that the trial court failed to undertake an adequate analysis of the relevant factors delineated by the Court of Appeals (6 NY3d 63 [2005]) and this Court (84 AD3d 48), and allowed its improper reconsideration of “negative secondary effects” to permeate its decision, and that the City has sustained its burden as to sham compliance by demonstrating that by and large the essential character of the 60/40 businesses has not changed, even if their physical structure has, I respectfully dissent.

Before 1995, city zoning regulations did not distinguish between adult enterprises and other commercial businesses. This changed after a September 18, 1994 study by the Department of City Planning (DCP) found that adult businesses, which had been rapidly increasing, often had negative secondary impacts such as increased crime rates, decreased property values, and deteriorated community character, and recommended that they be regulated more closely than other commercial uses.

The DCP study led to the 1995 amendments to the City's zoning regulations, which *11 restricted the location of “adult establishments.” This included, inter alia, barring adult establishments from residential districts and from manufacturing and commercial districts that also permitted residential development, and requiring that they be located at least 500 feet from churches, schools, day care centers, and other adult uses (see Text Amendment N 950384 ZRY [No. 1322]; Amended Zoning Resolution §§ 32-01 [a]; 42-01 [b]).

“Adult establishment” was defined in the 1995 Amendments as “a commercial establishment where a ‘substantial portion’ of the establishment includes an adult book store, adult eating or drinking establishment, adult theater, or other adult commercial establishment, or any combination thereof” (Amended Zoning Resolution § 12-10).

An adult book store was defined as a book store that has a “substantial portion” of its stock-in-trade in books, magazines, *296 photographs, films, video cassettes, or other printed matter or visual representations that are “characterized by an emphasis upon the depiction or description of ‘specified sexual activities' or ‘specified anatomical areas' ” (id. § 12-10 [Adult establishment] [1] [a]). An adult eating or drinking establishment was defined as an eating or drinking establishment that “regularly features” either live performances that are “characterized by an emphasis on ‘specified anatomical areas' or ‘specified sexual activities' ”; films or other photographic reproductions that are “characterized by an emphasis upon the depiction or description of ‘specified sexual activities' or ‘specified anatomical areas' ”; or “employees who, as part of their employment, regularly expose to patrons ‘specified anatomical areas' ”; and “which is not customarily open to the general public during such features because it excludes or restricts minors by reason of age” (id. § 12-10 [Adult establishment] [1] [b]). An adult theater was defined as a theater that “regularly features” films or other similar photographic reproductions that are “characterized by an emphasis on the depiction or description of ‘specified sexual activities' or ‘specified anatomical areas' ” or live performances that are “characterized by an emphasis on ‘specified anatomical areas' or ‘specified sexual activities,’ ” and “which is not customarily open to the general public during such features because it excludes minors by reason of age” (id. § 12-10 [Adult establishment] [1] [c]).

In Stringfellow's of N.Y. v City of New York (91 NY2d 382 [1998]), the Court of Appeals held that the 1995 amended zoning resolution did not on its face violate adult establishments' constitutional rights of free expression. The Court found that the 1995 resolution “was not an impermissible attempt to regulate the content of expression but rather was aimed at the negative secondary effects caused by adult uses, a legitimate governmental purpose” (91 NY2d at 399).

The 1995 resolution did not define “substantial portion,” but provided that

The resolution also provided that

To clarify the meaning of the phrase “substantial portion,” the Department of Buildings issued Operations Policy and Procedure Notice No. 6/98, which provided that a business would qualify as an adult establishment if “at least 40 percent of the floor and cellar area that is accessible to customers [is] available for adult” materials or if “10,000 or more square feet . . . is occupied by an adult use” (see City of New York v Les Hommes, 94 NY2d 267, 271 [1999] [internal quotation marks omitted]). Following this edict, adult businesses began to reconfigure their space so as to comply with the 60/40 formula.

In March 2001, after the City unsuccessfully challenged sham compliance by certain adult establishments on the basis of the Nuisance Abatement Law (see Les Hommes, 94 NY2d 267), DCP filed an application with the City Planning Commission (CPC) to amend the 1995 zoning resolution. In August 2001, the CPC issued a report endorsing the proposed amendments, as modified after public hearings. The report stated that the amendments were intended “to clarify certain definitions in the [1995 resolution], in order to effectuate the [CPC]' s original intent” (For the People Theatres, 6 NY3d at 74 [internal quotation marks omitted]), i.e., by addressing the attempts by adult establishments to stay in business at their present locations through sham conversions that technically complied with the 60/40 formula but did not alter their character.

*298 The City Council adopted and ratified the 2001 Amendments (Text Amendment N 010508 ZRY), which removed “substantial portion” from the definition of an adult establishment and defined adult establishment as “a commercial establishment which is or includes an adult book store, adult eating or drinking establishment . . . or any combination thereof” (Amended Zoning Resolution § 12-10 [Adult establishment] [1]). “Substantial portion” was not removed from the definition of adult video and book stores, but nonadult material was not to be considered stock for substantial portion analysis if: (1) customers had to pass through adult material to reach the nonadult section; (2) any material exposed one to adult material; (3) nonadult material was only for sale, while adult material was for sale or rent; (4) more adult printed materials were available than nonadult ones; (5) minors were restricted from the entire store or from any section offering nonadult material; (6) signs or window displays of adult material were disproportionate to signs and window displays featuring nonadult material; (7) booths were available for viewing adult movies or live performances; or (8) purchasing nonadult material exposed the buyer to adult material (id. § 12-10 [Adult establishment] [2] [d]).

In response, plaintiffs commenced these actions seeking a declaration that the 2001 Amendments are unconstitutional.

In determining whether the 2001 Amendments are constitutional, the appropriate starting point is to identify the dispositive issues and the City's burden of proof.

In 2003, the trial court granted plaintiffs summary judgment holding that the 2001 Amendments were unconstitutional (For the People Theatres of N.Y. v City of New York, 1 Misc 3d 394 [Sup Ct, NY County 2003], revd 20 AD3d 1 [1st Dept 2005], mod 6 NY3d 63 [2005]; Ten's Cabaret v City of New York, 1 Misc 3d 399 [Sup Ct, NY County 2003], revd 20 AD3d 1 [1st Dept 2005], mod 6 NY3d 63 [2005]). In 2005, we reversed and declared the 2001 Amendments constitutional (20 AD3d 1). Following the analysis set forth in Los Angeles v Alameda Books, Inc. (535 US 425 [2002]), the Court of Appeals modified our reversal and remanded for trial (6 NY3d 63), framing the sole issue thus:

The Court of Appeals rejected plaintiffs' argument that a new study was required, holding that if the character of the businesses is not “so transformed,” the negative secondary effects are presumed. The Court explained that “[i]t is th[e] essential character—as adult bookstores or adult video stores or strip clubs or topless clubs—that creates negative secondary effects” (6 NY3d at 81), and thus the City “was not required . . . to relitigate the secondary effects of adult uses, or to produce empirical studies connecting 60/40 businesses to adverse secondary effects” (id. at 83).

The Court of Appeals also delineated the City's burden of proof, stating:

*300 On the first remand, the trial court, after separate trials without a jury, held that the 2001 Amendments were constitutional (27 Misc 3d 1079 [Sup Ct, NY County 2010], revd 84 AD3d 48 [1st Dept 2011]).¹ When this Court reversed that determination, we identified four factors, derived from the 1994 DCP study, that should be considered in determining whether the adult establishments retained a predominant sexual focus. These were: (1) the presence of large signs advertising adult material; (2) the exclusion of minors by reason of age; (3) the sale of materials emphasizing “specified sexual activities” or “specified anatomical areas”; and (4) layouts that made it difficult to access nonadult materials (84 AD3d at 61-62). Furthermore, in addressing the extent of the City's burden under the heightened standard of intermediate scrutiny, we quoted the Court of Appeal's statement that

Accordingly, in addressing the City's burden, we expressly directed the trial court, on remittitur, to assess the City's proffered evidence as to its claim that 60/40 businesses continued to display a predominant, ongoing focus on sexually explicit materials or activities, and any other evidence offered in support of that claim, keeping in mind that “ ‘very little evidence is required’ to uphold the constitutionality of the 2001 Amendments” (84 AD3d at 62 [emphasis added], quoting Alameda Books, 535 US at 451). However, we did not obligate the City to submit additional evidence on remand. We simply gave it the opportunity to do so.

Applying these standards, on the second remand, the City, without submitting new evidence, demonstrated that the “essential *301 nature” of the 60/40 businesses has not changed. Substantial evidence demonstrates that, notwithstanding the present availability of additional amenities or certain nonadult uses of their space, the adult eating and drinking establishments used for illustrative purposes retained a predominant sexual focus. These establishments typically feature topless dancing by multiple dancers on a daily basis for approximately 16 to 18 hours a day (often from noon until 4:00 a.m.) and in a significant portion of the overall space, with lap dancing provided in both the adult and the nonadult areas. The clubs promote the topless dancing and lap dancing, through longer hours, higher prices, more patrons, and sexually focused advertisements.

At least three of the clubs used the same amount of space for topless dancing as they did before the 60/40 rule, and seven used their nonadult areas either to provide additional amenities for their topless bar customers, such as a coat check, an additional bar or dining area or hallways to the bathrooms, or as additional seating area. Only three offered any viable independent nonadult use. Thus, the nonadult portions of most clubs were either essentially a sham or pretext use because the space either was empty or was used to support the adult sexual focus.

In addition to understating the evidence demonstrating that the features of these establishments essentially remained the same, the trial court—contrary to the directions of this Court and the Court of Appeals—also considered whether there was evidence that these establishments caused negative secondary effects (see 84 AD3d at 59, 63 n 15; 6 NY3d at 83). As a result, it placed undue emphasis on the opinions of plaintiffs' experts, who expounded on that issue. This improper consideration permeated the court's conclusion that the establishments did not have a predominant sexual focus.²

The adult book stores and video stores also retained a predominant focus on sexual materials or activities. The evidence of promotion, based on signage, displays in some front windows and throughout the stores, and layout, combined with *302 the evidence of the presence of large numbers of peep booths and the evidence of the sale of adult sex toys in the nonadult sections of the stores, demonstrates that most of the stores (at least 11 of the 13) emphasized the promotion of sexual materials over nonadult materials.

The majority holds otherwise. *15

As to adult eating and drinking establishments, the majority concedes that the evidence adduced makes clear that the 60/40 clubs regularly feature topless dancing and lap dancing in a substantial portion of their overall space, and that coupled with evidence from the clubs' websites and ads, this demonstrates a predominant sexual focus. However, stating that this is only one of three relevant factors, the majority finds the amendments unconstitutional because the other two factors, signage and layout, do not tend to support the City's position.

As to the book stores and video stores, the majority similarly concedes that all stores sell materials that promote “specified sexual activities” or “specified anatomical areas,” and that while stock may have been reduced to less than 40% of floor space, all stores place a significant emphasis on these materials through signage and layouts promoting them, with stores having an average of 17 peep booths. While acknowledging that this supports the City's argument that the stores are predominantly sexually focused, the majority finds the amendments unconstitutional because this is only one of four relevant factors, and the other three, signage, policy towards minors, and layouts, do not tend not to support the City's position.

The majority's mechanical and mathematical approach, under which the predominant sexual focus in the 60/40 businesses' activities is quantitatively outweighed by signage, policies towards minors, and layouts, is inadequate under the dictates of the Court of Appeals and this Court, and elevates the City's burden of proof. In identifying certain factors relevant in assessing the character of the adult establishments, this Court did not call for a mechanical application by which each factor is to be weighted equally and tallied to arrive at a quantitative conclusion. Rather, in terms of how to weigh the relevant factors, by way of example, this Court explained that a finding

Thus, we recognized that if any one of the factors established that the 60/40 businesses displayed a predominant, ongoing focus on sexually explicit materials or activities, and that there had not been a significant change in their character, it could provide a sufficient basis to hold the 2001 Amendments constitutional.

Contrary to the view of the majority, the record fairly supports the City's contention that the adult establishments reviewed emphasized sexual activities or materials over nonadult materials.

For example, as to the adult eating and drinking establishments, as the trial court found, Ten's Cabaret regularly staged topless dancing and required a cover charge allowing its patrons to go back and forth between the adult and nonadult sections. The Vixen website emphasized adult entertainment, providing photos of the dancers and describing the theme of the club as fantasy and pleasure. The VIP Club offered lap dances to customers in the adult portion and in private rooms in both the first-floor adult portion of the premises and on the second floor in the nonadult portion. Its website offered photographs of the entertainers. Lace's exterior sign and website advertised it as regularly featuring adult entertainment. Private Eyes's awnings advertised “Adult Entertainment” and “Sports Cabaret and Gentlemen's Club.” In HQ, topless dancing was performed on the ground floor on two stages accommodating tables and chairs and an eating area. Wiggles had topless dancing on its stage and featured lap dances in its various rooms, charging between $20 and $200 depending on which rooms they took place in. Bare Elegance's exterior sign stated, “Bare Elegance Gentlemen's Club and Lounge” and “Live *16 Beautiful Models.” The nonadult area contained a bikini bar and an open area with several couches. Lace II, Pussycat and Vixen used the same amount of space for topless dancing as they did before the 60/40 requirement took effect in 1998.

While the clubs may have added certain amenities, they still resembled their 100% predecessors. Indeed, even as to the prior 100% businesses, the DCP study states:

Thus, “it is not unreasonable to conclude that an establishment with more than one principal use—for instance, semi-nude dancing and food service—is as liable to produce negative externalities as an establishment wholly devoted to presenting semi-nude dancing” (Entertainment Prods., Inc. v Shelby County, Tenn., 588 F3d 372, 382 [6th Cir 2009], cert denied 562 US 835 [2010]).

As to the adult book stores and theaters, Mixed Emotions's signage promotes private adult preview booths and adult toys and novelties. The store excludes minors. The adult section has 12 peep booths featuring adult movies, and the nonadult section sells sex toys and other sexually explicit merchandise.

Love Shack promotes its nonadult products above a sign promoting viewing booths. The store excludes minors, has eight peep booths featuring adult movies, and sells adult merchandise that is visible from the front nonadult section. Love Shack (Bronx) has at least eight peep booths featuring adult movies, sells adult novelties in the nonadult section, and advertises those items on signs outside the store.

Exquisite DVD publicizes itself as an adult establishment with a peep show sign on the front door, and has two areas containing buddy-style booths for the viewing of adult videos. Blue Door Video (Brooklyn) has seven peep booths for the viewing of adult movies, and sells rubber goods, lotions, and negligees in the nonadult section. Blue Door Video (Manhattan) has 24 peep booths featuring adult material, including 12 buddy-style booths, and sells adult novelties in the nonadult section. Further, in the nonadult section, there is a view of the adult section.

*305 Gotham City Video (West Side) excludes minors, and has 10 buddy-style peep booths for viewing of adult videos. Video Xcitement has 10 peep booths featuring adult movies, and sells rubber goods, lotions, and leather clothing and harnesses in its nonadult section. Thunder Lingerie has neon signs on the front entrance and over the nonadult section that advertise “peep shows” featuring adult movies. The store restricts minors, and has a front-window display filled with adult novelties. While standing in the nonadult section, customers are able to view the materials in the adult section, as well as large signs announcing the store's 10 peep booths.

Amsterdam Video's window contains sexually explicit merchandise and the nonadult section features adult merchandise. Vihans Video has eight peep booths for viewing of adult movies, which are publicized in neon outside the store. It excludes minors. Former Pride NYC excludes minors, has 12 adult buddy-style peep booths featuring adult films, and sells adult items in its nonadult section.

Show World eliminated its live adult entertainment, stopped advertising live nude movies *17 and “XXX Movies” on the marquee, eliminated “Peep-a live” booths, and revamped its former adult live-show space into a separate establishment (the Laugh Factory) for plays, film festivals, and comedy shows. However, it still has more than 60 peep booths featuring adult films, continues to restrict minors, and has outside signage promoting adult movies and private viewing booths.

Thus, eight of the stores have signs visible from the outside announcing the presence of peep booths or adult materials, and 12 stores that have peep booths promote them through either exterior and/or interior signage. Six of the stores have restrictions on minors. While plaintiffs argue that apart from “marital aids,” which should not be considered adult materials for these purposes, the adult materials are relegated to the less accessible rear of the store, there is no basis for ignoring the presence of sexual aids and toys in the nonadult section as a factor in determining whether a store has a predominant sexual focus.

Even if the signage, due to its size, is not deemed a factor showing a predominant sexual focus, and even if minors are excluded because they are disruptive, that evidence does not outweigh the evidence of the sale of materials emphasizing “specified sexual activities” or “specified anatomical areas.” It is undisputed that all of the stores sell such materials. Although *306 the stores may have reduced their stock of such materials to less than the 40% threshold, these materials remain a significant part of their business and the stores all place a significant emphasis on the promotion of such materials, based on promotional signage, window and interior displays and layouts promoting sexually focused adult materials and activities. Although there is no evidence suggesting “difficulties in accessing nonadult materials” at any of the stores (84 AD3d at 62), the lack of difficulty in accessing such materials, on its own, does little to show that a store lacks a sexual focus.

In sum, the City met its burden of establishing that the book and video stores are not “so transformed in character that they no longer resemble the kinds of adult uses found, both in the 1994 DCP Study and in studies and court decisions around the country, to create negative secondary effects” (6 NY3d at 84). This includes evidence that (1) all but one of the stores have numerous peep booths; (2) eight have signs visible from the outside announcing the presence of peep booths and/or adult materials, many of which are in neon; (3) all but one have a large selection of dildos and other sex toys for sale in the nonadult section of the store; (4) six exclude minors from the entire establishment; and (5) in many instances, the adult merchandise is visible from the nonadult areas and in five instances customers have to walk through adult areas to get to nonadult areas. Plaintiffs' protestations that the front of some stores contain nonadult material and is the predominant selling space, with adult material relegated to the back, ignores the many front window displays of graphic sexually explicit merchandise and signs promoting and pointing customers to the adult areas.

Since the 2001 Amendments are facially constitutional, we must determine the Ten's Cabaret plaintiffs' “as applied” challenge (see 84 AD3d at 65). Because the record is complete, I do not believe that there is a need to remand in this regard.

Although Ten's Cabaret and Pussycat Lounge adduced a fair amount of evidence showing that their businesses are no longer simply topless clubs, the record supports the finding that they retain a predominant sexual focus. At Pussycat, while the second floor and mezzanine are used for live music entertainment, the first floor features topless dancing on a stage every Monday through Saturday from noon until after midnight, and the club offers VIP suites and private dance areas. At Ten's, which has also been divided into two side-by-side clubs, the *307 adult club has two stages for topless dancing, as well as VIP areas with “champagne rooms” for private lap dances, which are open from the evening until *18 the early morning and which feature between 10 and 25 dancers at any one time.³ Thus, I find that the City is also entitled to a judgment upholding the constitutionality of the 2001 Amendments, as applied.

Accordingly, I would reverse the order on appeal and declare the 2001 Amendments constitutional in all respects.

Mazzarelli, J.P., and Feinman, J., concur with Kapnick, J.; Andrias and DeGrasse, JJ., dissent in an opinion by Andrias, J.

Judgment, Supreme Court, New York County, entered October 10, 2012, affirmed, without costs.